Brown v. Cannon

• Decision Date: 31 December 1848
• Citation: 10 Ill. 174,1848 WL 4136,5 Gilman 174
• Parties: JOHN BROWNv.ANTHONY CANNON.
• Court: Illinois Supreme Court

5 Gilman 174

10 Ill. 174

1848 WL 4136 (Ill.)

JOHN BROWN

v.ANTHONY CANNON.

Supreme Court of Illinois.

December Term, 1848.

BILL IN CHANCERY for a specific performance, filed in the Warren circuit court by the appellee against the appellant, and heard before the Hon. Norman H. Purple.

The bill stated, in substance, that on the 9th day of October, A. D. 1844, Cannon sold to Brown, by a written contract, a certain tract of land; that he agreed to make certain improvements on the premises in a good and workmanlike manner by the first day of the ensuing April, and, as soon as Brown should perform the conditions of the contract on his part, to execute to said Brown “a good, general warranty deed for the premises,” and to prevent waste in the meantime; that Brown agreed to pay $1100 on signing the agreement, and $400 on or before the said first day of April, in manner following, to-wit: two horses at a fair market price, a two horse carriage with wooden springs and harness at a fair price, and the balance of $400 in cash; and further, that Brown would then execute three notes for $166.66 2/3 cents, payable in one, two and three years after date, making in all the sum of $2,000.

The bill further stated that the first payment was made according to the terms of the contract, but that Brown failed to make the other payments and to execute the notes; that Cannon performed his part of the contract, except making a small portion of the repairs, which he afterwards offered to make, but was prevented from making them by Brown; that Brown took possession of the farm about said first day of April and has since remained in possession; that Cannon tendered a deed and avowed his readiness to perform, but that Brown, on his part, refused to comply with the terms of the contract. The prayer of the bill was for a specific performance.

Brown filed an answer under oath admitting the contract, but denying that Cannon had performed; averred performance on his part, and stated the following facts, to-wit: that when the contract was made, he lived in Ohio; that in the spring he left that State to remove to Illinois, expecting to arrive here by the first of April, but, on account of unavoidable delays, did not arrive until the 3rd day of April; that on the tenth day of the month, he tendered the carriage and horses and the balance of the payment of $400 to Cannon, who refused to accept the same because the tender was not made at the time specified in the contract, although Cannon was in default in not making the repairs he had agreed to make.

The answer denied that Cannon tendered a deed, but stated that he merely read a deed to Brown without offering to deliver it to him, or to exhibit his title or an abstract of it. It further stated that Cannon had not a clear title to the premises, but that certain individuals held an adverse outstanding title to the quarter section on which the farm is situated, and that such title was paramount to Cannon's title. It further stated that Brown had always been ready to perform and was still so ready; that the property had been valued and was ready for delivery when Cannon should perform on his part; and that Cannon did not make the improvements stipulated in the contract.

There was a replication to the answer.

It was proved that Brown did not arrive at the county of Warren until about the 3rd of April; that he soon afterwards made a tender of the horses, carriage and harness to Cannon, and professed himself ready and willing to pay the balance of the payment of $400; that Cannon refused to receive the property, whereupon Brown caused the same to be appraised, and offered to deliver the same to Cannon at any time.

It was further proved that Cannon did not make all the repairs on the house and fencing which, by the contract he had agreed to make, and that such as were made were not made in the good and workmanlike manner contemplated by the contract. It was also proved, that at the time of making the contract, Cannon assured Brown that his title was good,--as good as any in the State of Illinois. It was proved by Cannon's son that he had heard his father say that there was an old tax title on the land, which one Porter, who was present at the time, said was worthless. Porter, however, and other witnesses present swore that Cannon said nothing about a tax title on the land, and that nothing was said by any one present about such a title.

There was some evidence in relation to a deed having been tendered, but that Cannon, on tendering the deed, required the performance of conditions on the part of Brown not contained in the contract. The record further showed that Cannon proved on the trial a title to the land derived from the patentee, and that Brown, at the same time, proved an outstanding tax title for a quarter section of the land, the sale for taxes having been made in 1834, and the deed in 1836. It further appeared that Cannon bought his title in 1838, having previously in 1837 taken possession and continued the same until Brown entered.

A decree, by consent of parties, was entered in November, 1847, after the adjournment of the regular term, requiring a specific performance, etc., the personal property to be appraised by the sheriff of Warren county.

A. WILLIAMS and C. B. LAWRENCE, for the appellant:

An agreement to make a good and sufficient deed of warranty is to be construed as an agreement to make a deed that shall pass a good title. The agreement refers to the title to be conveyed, and not to the form of the deed. Chute v. Robinson, 2 Johns. 595; Judson v. Wass, 11 do. 526; Evertson v. Kirtland, 4 Paige, 638.

Courts will not decree a specific performance in behalf of vendor, unless he can show a title free from doubt. Marlow v. Smith, 2 Peere Williams, 201; Stapylton v. Scott, 16 Vesey, 271; Jervaise v. Duke of Northumberland, Jacob & Walker, 547; Lowes v. Lusk, 14 Vesey, 549; Sheffield v. Lord Mulgrave, 2 do. 526; Roake v. Kidd, 5 do. 647; 2 Mad. Ch. 434; Seymour v. Delahay, 6 Johns. Ch. R. 222; Garnett v. Macon, 2 Brock. 207; 1 Sug. on Vendors, 425.

Courts will not decree a specific performance in favor of a party who is himself in default, a specific performance being not “ ex debito justitiæ,'DD' but resting wholly in the discretion of the court. The complainant in those cases must come into court with clean hands. Seymour v. Delahay, 6 Johns. Ch. R. 222.

The decree was erroneous in directing the sheriff to value the property.

O. H. BROWNING and N. BUSHNELL, and R. S. BLACKWELL, for the appellee:

1. The neglect of the complainants to make the repairs stipulated in his contract of sale, does not constitute such a substantial failure on his part as will justify a court of equity in decreeing a rescission of the contract, but is a proper case for compensation. 2 Story's Eq. Jur. § 775.

2. There is enough evidence to satisfy the court that the complainant tendered a deed to the defendant.

3. A specific performance will be decreed on the application of a vendor, notwithstanding a defect in his title, when the contract was made, if he is in a condition to make a good title by the time the decree is rendered. 2 Story's Eq. Jur. § 777.

The evidence shows that Cannon entered into the possession of the premises in 1837; that he acquired title in 1838, and continued in possession until Brown entered under the contract in 1845, and that Brown continued that possession down to the time the decree in this cause was rendered, which was in the fall of 1847. So that it appears Cannon and Brown had a continuous and uninterrupted possession of the premises in controversy, under a connected chain of title deducible of record from the U. S. for the period of nine years. The outstanding title which is relied upon as casting a cloud upon our title, accrued in 1836. The right of entry of the adverse owner is, therefore, tolled by the statute of limitations, his remedy barred, and complainant's title has ripened into a paramount one. Rev. Stat. 349, § 8.

But it is insisted that that title may belong to an infant, feme covert, or some other person laboring under disability created by law, and whose rights are therefore saved by the statute of limitations. To this we answer, these disabilities are exceptions, and must be shown by those who rely upon them. There can be no presumption in such a case unfavorable to the title of the complainant. The burden of proof is upon the party setting up the outstanding title. We show a prima facie title; the defendant sets up an outstanding adverse title; to this we reply, seven years' continuous possession; if, then, they insist that the adverse title belongs to some person laboring under the disability of infancy, coverture, etc., they must prove it, or they have not cast a cloud upon our title.

There is also some evidence in this case, that defendant knew of this adverse title when he purchased; if so, he can not resist a specific execution upon this ground. 2 Story's Eq. Jur. § 778.

The Opinion of the Court was delivered by CATON, J.

In this case both parties were equally in fault, and neither should be allowed to complain, that the other had not technically, and punctually fulfilled. The complainant did not have the improvements completed as he had agreed, by the first of June. This default was not of such importance, that the court might not disregard it, or make a compensation in damages. So also, was Brown in default, by not being ready by the same day, to make the four hundred dollar payment, which was to be paid partly with two horses, a carriage and harness, and the balance in cash. Some slight excuse is offered by the complainant for not completing the ceiling of the house, such as that the lumber was not yet sufficiently seasoned; and the defendant offers a very satisfactory reason why he was not there by the first of April. It was known that he resided in Ohio, when the contract was made, whence he was to come, and take possession in the...